“Desert Rock air permit appeal extended by EPA—period increased by 30 days”
by Kathy Helms (Diné Bureau)

Window Rock- The U.S. Environmental Protection Agency’s Environmental Appeals Board has granted a request by New Mexico and environmental groups for a 30-day extension of time in their appeal of the Desert Rock air permit.

In an order issued Thursday, Environmental Appeals Judge Edward E. Reich also granted a motion by Desert Rock Energy Co. LL, allowing the permittee to participate in the appeal proceeding and denied a stay of briefing on certain issues pertaining to a best available control technology limit for carbon dioxide emissions.

On Friday, 30 community, indigenous and environmental groups—including members of the Navajo were at EPA headquarters in San Francisco to protest the visit of Administrator Stephen L. Johnson and denounce what they claim are “EPA’s pro-polluter policies.”

EPA’s veto of California’s attempt to reduce greenhouse gas emissions from cars, and approval of the air permit for the proposed Desert Rock coal-fired power plant were among key actions being protested.

On July 29, Senate Democrats called for Johnson’s resignation, charging that he had given misleading testimony before Congress, refused to cooperate with congressional oversight, and based agency decision-making on political considerations rather than scientific evidence or the rule of law.

Sen. Barbara Boxer, D-Calif., said Johnson has consistently chosen special interests over the American people’s interests in protecting health and safety.

“He has become a secretive and dangerous ally of polluters, and we cannot stand by and allow more damage to be done,” she said.

Desert Rock opponents

Desert Rock opponents have alleged that EPA’s approval of a prevention of significant deterioration, or PSD permit, was mired in politics.

“EPA is bending to the will of corporate, financial and misguided political interests that will pollute New Mexico’s skies,” Gov. Bill Richardson said when the air permit was issued.

Navajo Nation President Shirley Jr. has said development of the project with its state-of-the-art technology means more than 1,000 construction jobs, more than 400 permanent jobs, and more than $50 million annually in revenue. “We know that there will continue to be challenges, but, hopefully, at day’s end we will prevail,” he said recently.
On Aug. 14, the Environmental Appeals Board received a petition requesting the board grant review of Region 9’s permitting decision of Desert Rock.

The petition was filed jointly by Diné CARE, Environmental Defense Fund, Grand Canyon Trust, Natural Resources Defense Council, San Juan Citizens Alliance, Sierra Club, and WildEarth Guardians. In the order they are lumped together as “NGO Petitioners.”

NGO Petitioners requested an extension of time through Oct. 17 to file a supplemental brief in support of their petition and requested a stay of certain issued pertaining to carbon dioxide emissions pending the board’s decision in another case that also raises issues concerning carbon dioxide.

New Mexico petition

On August 15, the state of New Mexico also filed a petition requesting the board grant review of the permit. New Mexico requested the board grant oral argument on its petition, and also filed a separate motion requesting an extension of time through Oct. 17 to file a supplemental brief.

New Mexico observed, among other things, that the region’s response to comments on the draft permit is 220 pages long and includes an additional 42 attachments totaling several hundred pages. The state said it needs the extra time to adequately analyze and brief issues raised in its petition.

On Aug. 20, Desert Rock filed a motion requesting it be allowed to participate in the administrative appellate proceeding and opposing the requests for an extension of time and stay.

Also on Aug. 20, the board received a response by Region 9, filed in consultation with EPA’s Office of Air and Radiation, stating it does not oppose a 30-day extension, but does oppose a stay of briefing on the carbon dioxide issues.

The board granted Desert Rock’s request to participate in the proceeding and also granted a 30-day extension until Thursday, Oct. 2 for NGO petitioners and New Mexico to file supplemental briefs. It denied the request for stay of briefing on certain issues pertaining to a BACT limit for carbon dioxide emissions and took the request for oral argument under advisement.

“As we have frequently explained, the petitioners’ burden on appeal to the board requires them to go beyond their previous filings during the permitting process. Specifically, the petitioners must describe each objection they are raising and explain why the permit issuer’s previous response to each objection is clearly erroneous or otherwise deserving of review, “ Reich wrote.

“Among other things, we find significant the fact that the petitioners in the present case must digest and address in their appellate briefs the relevant portions of the Region’s 220-page response to comments and additional attachments amounting to hundreds of pages.”

Reich said the board concludes that its decision-making process will benefit from affording petitioners the additional time to fully present their arguments.